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HomeMy WebLinkAbout93-2035 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2035 CRIMINAL 1993 : PAUL C. FAHNESTOCK : OTN: E002909-4 : CHARGE: DUI IN RE: ,OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., October 24, 1995 In this driving under the influence case, Defendant has appealed to the Superior Court from a judgment of sentence. The basis for the appeal, as expressed in Defendant's Statement of Matters Complained of on Appeal, is as follows: 1. On or about June 23, 1995, the Court of Common Pleas of Cumberland County, Pennsylvania, the Honorable J. Wesley Oler, Jr. presiding, denied Defendant's Omnibus Pre- Trial Motion to [Dismiss] following a hearing on the matter. 2. On or about June 23, 1995, the Court of Common Pleas of Cumberland County, Pennsylvania, the Honorable J. Wesley Oler, Jr. presiding, at a non-jury trial, found Defendant guilty of the above captioned offenses. 3. Defendant appeals the trial court's denial of his Omnibus Pre-Trial Motion and seeks to have the conviction vacated and the charges dismissed consistent with Pa. IR. Crim. P.] l100(a)(3).~ In accordance with Pennsylvania Rule of Appellate Procedure 1925(a), this Opinion is written in support of the court's denial of Defendant's pretrial motion to dismiss under Rule 1100. ~ Defendant's Statement of Matters Complained of on Appeal, filed September 25, 1995. NO. 2035 CRIMINAL 1993 STATEMENT OF FACTS A criminal complaint charging the Defendant with driving under the influence was filed on October 5, 1993.2 A two-hour non-jury trial was held on June 23, 1995, at the conclusion of which the court found Defendant guilty.3 He was sentenced on August 8, 1995, to the mandatory minimum sentence applicable to second offenders.4 Pursuant to Pennsylvania Rule of Criminal Procedure 410(B)(1) (bail after finding of guilt and sentencing), the court authorized his continued release during the pendency of an appeal,s Six hundred and twenty-six days elapsed between the filing of the complaint and the trial. During this time, Defendant remained "at liberty on bail" with respect to the charge,e The following events pertinent to a proper computation of time for commencement of trial under Rule 1100 occurred between the filing of the complaint and the trial. On June 16, 1994, a continuance at the request of Defendant's N.T. 10, Hearing on Defendant's Motion To Dismiss, June 23, 1995. N.T. 68, Trial, June 23, 1995. Order of Court, August 8, 1995. s Id. See Pa. R. Crim. P. l100(a)(3); Commonwealth's Exhibit 1 (docket entries), Hearing on Defendant's Motion To Dismiss, June 23, 1995 (indicia of Defendant's release on own recognizance). 2 NO. 2035 CRIMINAL 1993 public defender was granted to the next trial term, commencing on September 12, 1994.7 The case was not reached, however, during that trial term. Defendant thereafter elected to waive a jury trial.8 The non- jury trial was informally scheduled for February 15, 1995,9 and Defendant's public defender stipulated to this end that the period of time between December 16, 1994, and the anticipated trial date would be excluded for purposes of a computation of time for commencement of trial under Rule 1100.~° The date of trial was subsequently advanced by the district attorney's office to February 9, 1995, because of a scheduled excursion to Wisconsin by the arresting officer over a period including February 15.~ Although the schedule of Defendant's public defender could 7 Order of Court, June 16, 1994 (Bayley, J.). This request by Defendant for a continuance was filed in conjunction with a motion to suppress. The motion to suppress was denied following a hearing. Order of Court, August 29, 1994 (Bayley, J.). 8 Waiver of Jury Trial, November 1, 1994 (Hess, J.). 9 See Defendant's Exhibit 2, Hearing on Defendant's Motion To Dismiss, June 23, 1995 (letter from district attorney's office to defendant directing appearance for trial); N.T. 17, Hearing on Defendant's Motion To Dismiss, June 23, 1995 (stipulation that district attorney's office arranges for scheduling of criminal trials). ~0 Defendant's Exhibit 1, Hearing on Defendant's Motion To Dismiss, June 23, 1995 (stipulation). ~ Commonwealth's Exhibit 2, Hearing on Defendant's Motion To Dismiss, June 23, 1995 (letter from officer to district attorney advising of planned trip to Wisconsin, prior purchase of nonrefundable plane tickets). 3 NO. 2035 CRIMINAL 1993 have been rearranged to accommodate the advanced trial date,~2 he preferred to move for another continuance.~3 Defendant's motion for a continuance was granted on February 8, 1995, and trial was rescheduled for April 12, 1995.~4 Nothing in Defendant's motion for a continuance indicated that the delay in trial occasioned by a grant of the motion might subsequently be utilized as a basis for a Rule 1100 motion. Defendant then elected to retain private counsel, who replaced the public defender as attorney of record on February 16, 1995.~5 This counsel filed a motion for continuance of trial on April 12, 1995, expressly acknowledging that the delay in trial occasioned by the grant of the continuance would be counted against Defendant for purposes of Rule 1100, commencing April 12, 1995.~6 The court granted the motion, and rescheduled trial for June 23, 1995.~7 ~2 N.T. 8-9, Hearing on Defendant's Motion To Dismiss, June 23, 1995. ~3 On January 31, 1995, the district attorney's office had offered the public defender alternative dates for trial of February 3, 1995, and February 9, 1995, but neither was entirely convenient for him. N.T. 21, Hearing on Defendant's Motion To Dismiss, June 23, 1995. ~4 Order of Court, February 8, 1995. ~5 Appearance Praecipe Pursuant to Pa. R. Crim. P. 302, filed February 16, 1995. ~6 Defendant's Motion for Continuance, paragraph 4, filed April 12, 1995. ~? Order of Court, April 12, 1995. 4 NO. 2035 CRIMINAL 1993 The day before trial, Defendant's new counsel filed a motion to dismiss under Rule 1100.~" The motion conceded that of the over 600 days between the filing of the complaint and trial, the periods relating to the defense-requested continuance on June 16, 1994 (said to be 90 days), the defense stipulation on December 16, 1995 (said to be 62 days), and the defense-requested continuance on April 12, 1995 (said to be 73 days) were excludable under Rule 1100.~9 It contended, however, that the period relating to the defense-requested continuance on February 8, 1995 (said to be 54 days), was not excludable.2° The consequence of the non-exclusion of the latter period was said to be an effective violation of Rule 1100 by 36 days in Defendant's case.2~ A hearing on Defendant's motion to dismiss was held the day following its filing. At the conclusion of the hearing, the motion was denied.22 DISCUSSION Under Pennsylvania Rule of Criminal Procedure 1100(a)(3), it ~8 Defendant's Omnibus Pre-Trial Motion (Motion to Dismiss), filed June 22, 1995. ~9 Defendant's Omnibus Pre-Trial Motion (Motion to Dismiss), paragraph 6, filed June 22, 1995. 20 Defendant's Omnibus Pre-Trial Motion (Motion To Dismiss), paragraph 7, filed June 22, 1995. 2~ Defendant's Omnibus Pre-Trial Motion (Motion To Dismiss), paragraph 6, filed June 22, 1995. 22 Order of Court, June 23, 1995. 5 NO. 2035'CRIMINAL 1993 is provided that "[trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed." The Rule also, however, ~ provides as follows: In determining the period for commencement of trial, there shall be excluded therefrom: ... (2) any period of time for which the defendant expressly waives Rule 1100; (3) such period of time at any stage of the proceedings as results from: ... (ii) any continuance granted at the request of the defendant or the defendant's attorney. Pa. R. Crim. P. 1100(c)(2), (3)(ii). The Pennsylvania Supreme Court has discussed the purposes of Rule 1100 in the following terms: Rule 1100 serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2) the protection of society. In determining whether an accused's right to a speedy trial has been violated, consideration must be given to society's right to effective prosecution of criminal cases, both to restrain those guilty of a crime and to deter those contemplating it. The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth. Commonwealth v. Genovese, 493 Pa. 65, 69-70, 425 A.2d 367, 369-70 (1981) (citations omitted); see Commonwealth v. Corbin, 390 Pa. NO. 2035 CRIMINAL 1993 Super. 243, 249-50, 568 A.2d 635, 638 (1990). An interpretation or construction of Rule 1100 which is consistent with its purposes is to be favored. "Rule 1100 [is to] be construed reasonably so as to achieve an expeditious determination of criminal charges and not hypertechnically to abort trials thereof." Commonwealth v. Hamm, 325 Pa. Super. 401, 416, 473 A.2d 128, 136 (1984). "Rule 1100 was never intended to be used as a device by which a defendant may escape responsibility for his actions .... " Commonwealth v. Gulden, 502 Pa. 66, 71, 463 A.2d 1011, 1014 (1983). As the Supreme Court has stated, so long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime .... [C]ourts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing in our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system. Commonwealth v. Genovese, 493 Pa. 65, 72, 425 A.2d 367, 371 (1981); see Commonwealth v. Corbin, 390 Pa. Super. 243, 250, 568 A.2d 635, 638-39 (1990). The unavailability of a police witness for the prosecution due to a vacation may, of course, warrant an extension of the rundate under Rule 1100 in an appropriate case. See, e.g., Commonwealth v. 7 NO. 2035 CRIMINAL 1993 Corbin, 390 Pa. Super. 243, 568 A.2d 635 (1990). In this case, the plain language of Rule 1100 would seem to prescribe the exclusion of 88 days,23 63 days,24 and 72 days~s by virtue of defense-requested continuances, and 54 days~6 by virtue of an express defense waiver, from the 626 days which elapsed between the filing of the complaint and trial, for purposes of calculating a rundate under Rule 1100. The resultant calculation yields a total period of 349 includable days between the filing of the complaint and trial, a duration well within the constraint upon the prosecution under Rule 1100. To adopt the Defendant's position that the defense-requested continuance on February 8, 1995, should, at a time when the Commonwealth has lost any opportunity to avoid the penalty of such holding, be regarded as an exception to the rule that continuances granted to a defendant are excludable under Rule 1100, would in the ~3 From June 16, 1994, to September 12, 1994. See note 7 supra and accompanying text. ~4 From February 8, 1995, to April 12, 1995. See notes 12-14 supra and accompanying text. 2s From April 12, 1995, to June 23, 1995. See notes 16-17 supra and accompanying text. z6 From December 16, 1994, to February 8, 1995. See notes 10- 14 supra and accompanying text. In this regard, the court has reduced by seven the number of excluded days from the express terms of the waiver. This reduction has been made to avoid excluding the period from February 8, 1995, to February 15, 1995, twice -- once as part of Defendant's express waiver and once as part of his continuance request -- to Defendant's detriment. 8 NO. 2035 CRIMINAL 1993 court's view be incompatible with the plain words of the Rule, would involve a construction inconsistent with its purpose, and would substantially sanction its use "as a device by which a defendant may escape responsibility for his actions." For these reasons, the court denied Defendant's pretrial motion to dismiss under Pennsylvania Rule of Criminal Procedure 1100. Michael Morris, Esq. Assistant District Attorney Daniel J. Sodus, Esq. Attorney for Defendant :re